Just finished up a law review-ready draft -- I'll be sending it out shortly -- and posted it here. Here's the Introduction, without the footnotes (which are available in the PDF file I linked to):

Percy Bysshe Shelley was a poet and a cad. He married his wife, Harriet Westbrooke, when she was 16, but left her for Mary Wollstonecraft Godwin three years later. When he left, his and Harriet's daughter was a year old, and Harriet was pregnant with their son.

Two years later, Harriet committed suicide. When Shelley decided to raise the children himself, Harriet's parents refused to turn them over, and Shelley went to court. Though fathers had nearly absolute rights under then-existing English law, Shelley became one of the first fathers in English history to lose custody of his children.

Percy Shelley was also an avowed atheist -- and the Court of Chancery mostly relied on this, not on his infidelity or unreliability. Shelley shouldn't be put in charge of the children's education, the Lord Chancellor reasoned: Shelley endorsed atheism and sexual freedom, and would teach his children to do the same. Twenty years later, Justice Joseph Story likewise wrote that a father could lose his rights for "atheistical and irreligious principles."

Shelley's case may look like something out of another time and place. That time and place, it turns out, is 2001 Mississippi, where the state supreme court upheld an order giving a mother custody partly because she took the child to church more often than the father did, thus providing a better "future religious example." Presumably an outright atheist would be at even more of a disadvantage in a Mississippi child custody dispute.

And if he wasn't denied custody, he might be ordered to take the child to church each week, as a Mississippi court ordered in 2000, reasoning that "it is certainly to the best interests of [the child] to receive regular and systematic spiritual training." Arkansas, Louisiana, Michigan, Minnesota, Pennsylvania, South Carolina, South Dakota, and Texas courts also authorize judges to favor more religious parents over the less religious or the irreligious; there are similar cases in 1970s Iowa, Nebraska, North Carolina, and New York.

Likewise, through the past decades, parents have had their rights limited or denied partly based on their racist views, advocacy of Communism, Nazi sympathies, advocacy of pacifism and disrespect for the flag, advocacy of polygamy, defense of the propriety of homosexuality, defense of adultery, advocacy of (or inadequate condemnation of) nonmarital sex, fundamentalism, teaching of religions that make it hard for children to "fit in the western way of life in this society" or that are "non-mainstream," and teaching of religious intolerance.

The Pennsylvania Supreme Court is now reviewing the polygamy advocacy case, framing the question as "To what extent can the courts limit parents from advocating religious beliefs that, if acted upon, would constitute criminal conduct?" -- a question that could equally apply to parents' teaching their children the propriety of refusing to fight in unjust wars, the propriety of civil disobedience, and the like. All this is done under the rubric of the "best interests of the child" standard, the normal rule applied in custody disputes between two parents, which leaves family court judges ample room to consider a parent's ideology.

Courts have also ordered parents not to swear in front of their children, and to install Internet filters. They have also considered, as a factor in the custody decision, parents' swearing, exposing their children to R-rated movies, exposing their children to pornography, and exposing their children to photos of men in women's clothing.

Likewise, Texas law leaves custody decisions to juries, and lets jurors consider a parent's religious "beliefs, teachings, or practices" as part of the best interests inquiry, if the jurors conclude that those "beliefs, teachings, or practices are illegal, immoral, or demonstrated to be harmful to the child." "[W]hat is immoral or harmful" is to be "left to the jury to apply community standards," and may include "gambling, playing a lottery, drinking to excess, homosexual conduct, or abortion." Presumably constitutionally protected speech, if seen as an "illegal" or "immoral" "belief[]" or "teaching[]," could be considered, just as constitutionally protected abortions might be. Many judges and juries are doubtless reluctant to use the best interests standard this way, especially where religious or political teaching is involved. But others are quite willing.

In a second category of cases, courts restrict custody or visitation based partly on a parent's having said bad things about another parent, or order a parent not to say such things. Sometimes, the parent's speech might seem like simple badmouthing, perhaps even constitutionally unprotected slander.

But at other times, the restrictions are based on a parent's expressing broader viewpoints that also expressly or implicitly condemn the other parent. One parent, for instance, was ordered to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic," because the other parent was homosexual. Parents have lost rights based partly on telling their children that the other parent was damned to Hell, or on otherwise criticizing the other parent's religion. A court could likewise restrict a father's teaching his children that women must be subservient to men, since such speech might undermine the mother's authority.

Some restrictions in this category have been based on a parent's revealing facts that undermine the child's relationship with the other parent, for instance when a mother accurately told her 12-year-old daughter that her ex-husband, who had raised the daughter from birth, wasn't the girl's biological father. And some court orders prohibit the parent from telling the children anything about such orders, presumably on the theory that such discussions are likely to remind the children about tension between the parents, or are likely to be accompanied by explicit or implied criticism of the other parent.

In a third category of cases, some courts have restricted a parent's religious speech when such speech was seen as inconsistent with the religious education that the custodial parent was providing. The cases generally rest on the theory -- sometimes pure speculation, sometimes based on some evidence in the record -- that the children will be made confused and unhappy by the contradictory teachings, and be less likely to take their parents' authority seriously. In one case, a court actually ordered "that each party will impress upon the children the need for religious tolerance and not permit any third party to attempt to teach them otherwise," though it's not clear how such a vague order could be enforced.

In Part IV, I'll argue that they generally aren't, except when they're narrowly focused on preventing one parent from undermining the child's relationship with the other. But the observations that lead to this proposal should, I think, prove more interesting to readers than the proposal itself. Here is a brief summary:

1. As I described above, the best interests test leaves courts free to make custody decisions based on parents' speech, and to issue orders restricting their speech. Courts have taken advantage of this freedom, and will surely do so again. The losers vary depending on which ideology is disfavored at the time in that place: Sometimes they are atheistic and sometimes fundamentalist, sometimes racist and sometimes pro-polygamist, sometimes pro-homosexual and sometimes anti-homosexual. But whoever the losers are, these cases should lead us to take a hard look at this doctrine. And though child custody speech restrictions on ideological speech aren't routine, upholding them may lead them to become more common.

2. The First Amendment is implicated not only when courts issue orders restricting parents' speech, but also when courts make custody or visitation decisions based on such speech. Just as the Equal Protection Clause bars child custody decisions that discriminate based on race, so the First Amendment presumptively bars child custody decisions that discriminate based on a parent's constitutionally protected speech.

3. Even when the parents' speech is religious, the Free Speech Clause is probably more important than the Religion Clauses, though nearly all the scholarship and most of the litigation has neglected the Free Speech Clause.

4. If parents in intact families have First Amendment rights to speak to their children, without legal prohibitions on speech that is supposedly against the child's "best interests," then parents in broken families generally deserve the same rights, except when the speech undermines the child's relationship with the other parent.

5. Parents in intact families should indeed be free to speak to their children -- but not primarily because of their self-expression rights, or their children's interests in hearing the parents' views. Rather, the main reason is that today's child listeners will grow up into the next generation's adult speakers: That next generation is entitled to hear a broad range of ideas, without government interference. Restrictions on ideological parent-child speech are a powerful way for today's majorities or elites to entrench their ideas, and to block their ideological rivals from being heard in the future. The First Amendment is a necessary check on this entrenchment.

6. It may seem appealing to protect speech but only if it doesn't imminently threaten likely psychological harm to the children, but such an approach will likely prove unhelpful.

There have been some moves in states around the country to get granparental visitation rights, so it doesnt suprise me that in the end of all things we would continue to get farther and farther down the road of litigating everything.

Custody isnt fun. While I havent done it myself I have been on more then one occasion as close as you can get. There are no winners only loosers. The courts getting down into the muck more and more cant be a positive sign. While it would be nice if people wouldnt need to have the courts work out a divorce, there is always going to be a need for it. In that case we should have the least ammount of involvement in the greatest number of cases. It seems to me that the courts trying to divine the best spiritual path would be a waste of time they could spend doing the next case. In the end the paths that anyone takes to their enlightenment are varried. It is possible by forcing the religious education on children they turn them off. The courts should conceed it isnt what they are equipped for, and they should stay out of those areas. There isnt a positive side to working farther down this road as it makes the law, and its application so arbitrary as to be useless. The more facets, and crellenations you add the easier it becomes to add bias, and unjust decisions into the process of the law.

The smallest and the least ammount of rules and guidelines. Physical wellbeing, general fitness, and econmic stability. Beyond these realms, things such as who will make the child whole, or make him or her smile, become if not impossable, but unreasonable to assume there should even be the effort made in the first place.

The First Amendment bears on custody battles because the Supreme Court has held that actions by judges constitute "state action" for purposes of the First Amendment even when they are issued in response to lawsuits by private parties. See New York Times v. Sullivan (1964) (liability in libel lawsuit by one private citizen against another was limited by First Amendment).

Moreover, some custody restrictions are imposed sua sponte by the family court judge over the objections of both spouses. E.g., In re Julie Anne, 121 Ohio Misc. 2d 20, 780 N.E.2d 635 (Oh. 2002) (upholding trial judge's order that both divorced parents not smoke when minor child was present in their home, over their objections).

But the First Amendment isn't much help, because the Fourteenth Amendment right to the custody of one's child, which is every bit as fundamental as free speech, has already been held to be trumped by the "best interests of the child."

The "best interest of the child" standard is so vague that different judges can use it to achieve diametrically opposing results that intrude upon parents' lives.

A judge who likes gays and lesbians can use it to silence an anti-gay parent, while a judge who dislikes them can limit a gay parent's love life. A judge who is secular can punish a parent for being "too" religious, while a judge who is religious can punish a parent for missing church services.

Another factor is the bias towards sole custody of the child, even where both parents are fit. This results in applying the "best interests" standard in extremely subjective ways---including consideration of things like churchgoing---in order to differentiate between two essentially equal parents. Maybe if joint custody were the baseline we'd be able to avoid some of the First Amendment implications. I believe that this is also the position that many father's rights groups take for other reasons.
[T]he Fourteenth Amendment right to the custody of one's child, which is every bit as fundamental as free speech, has already been held to be trumped by the "best interests of the child."

Hans - do you have a case cite for that? My understanding is that under Santosky v Kramer, parental rights may only be completely terminated if the parent is unfit, not through application of the "best interests" standard. Custody may be taken away under the best interests standard, but that's not the same as termination of parental rights.

Columbienne -- You're right, best interest of the child is technically used only for custody decisions, not for total termination of parental rights.

But even "mere" custody decisions can sharply limit the constitutional right to raise your child (as when a court orders a parent who was previously equally involved in raising the child to have visitation for only a few days a month, and gives the other parent sole physical custody).

And in other contexts, like free speech, even partial abridgements of the constitutional right trigger strict scrutiny. (A content-based restriction applying only to certain places, for example, is generally subject to strict scrutiny, even though it does not totally ban the speech it regulates or totally take away the constitutional right at issue. See Reno v. ACLU (1997) (striking down indecency ban confined to the Internet)).

So if best-interests-of-the-child is not a compelling interest (as several Supreme Court justices have suggested, and as the Court implicitly-held in the grandparents' rights case, Troxel v. Granville, 530 U.S. 57 (2000), although a few state supreme courts have held to the contrary), and thus cannot justify denying all parental rights, it is hard to see why it should justify largely denying parental rights by giving one parent sole physical custody.

For example, in one Minnesota case, a court cut off all visitation by the non-custodial father, but still required him to continue making child support payments. He was actually worse off than if his parental rights had been terminated, since if his rights had been entirely terminated, he would not have had to make child support payments (the mother was not strongly opposed to terminating all his parental rights, because she made more money than the father, was capable of supporting the child on her own, and perceived that terminating his parental rights would have prevented the theoretical possibility that visitation rights would be revived by a later court ruling).

(The father sought help from me, but I turned him down, since I was working at that time for a public-interest law firm that did not handle state court cases, only federal court cases, and under circuit precedent, his case was stuck in state court regardless of any federal constitutional issues because of the Rooker-Feldman doctrine).

Great article. I'm pleased to see this subject getting legal interest.

I'm not sure why it is that courts are allowed to trump parental rights for the "best interest" standard in custody cases, but the problems go well beyond First Amendment rights (although I can see why they'd be the most problematic).

Why should divorcing parents be required to give up so many rights? For example, they lose the right to decide how much money they want to spend on their children--or at least, one of them does.

It may seem completely reasonable to force a parent to spend money on his child, but this, too, is not a requirement we place on intact families short of abusive neglect.

I agree with nearly all that Hans said, but I don't think that the parental rights test either is or should be as restrictive of government authority as the free speech test. I discuss the "is" part explicitly in Part III.A.1, and the "should be" implicitly in the rest of Part III.

Moreover, this is especially so as to broken families, as opposed to intact ones. When parents separate (whether divorce, or just move out when they weren't married in the first place), there has to be some limitation of parental rights: It's physically impossible for the child to be in both parents' homes at once, so one or both of the parents will necessarily have considerably less access to the child. And in many such families, the separated parents can't make decisions together, so one parent (if you give that parent decisionmaking power) or both parents (if you decide that some government entity should arbitrate all the decisions) will necessarily have much less authority over the child's life.

But there doesn't have to be the same limitation of the parents' free speech rights; and such limitations on the parents' rights to convey their ideas to the child pose more serious systemic problems -- which I discuss in Part III of the article -- than do limitations on the parents' nonspeech rights. So while I think parental rights are important, I think it especially makes sense for free speech rights to be more protected than parental rights in broken families.

Logically, best-interests-of-the-child is just too nebulous and manipulable for any restriction based on it to be narrowly-tailored to advancing a compelling government interest. Cf. Reno v. ACLU (1997) (vagueness of indecency keeps ban on indecency on Internet from being narrowly-tailored to promoting a compelling interest).

Professor Volokh makes important points. But I have a different perspective regarding some of his observations.

(1) He notes it is not possible for the child to be in the house of both divorcing parents at the same time.

But it surely IS possible for the child to be in at least one of them. Yet courts are quite willing to let the custodial parent warehouse the child in day case (and collect lots of additional child support payments to pay for the day care) when he or she is not around, even when the non-custodial parent is willing to provide care during that exact same period for free.

At the very least, the courts should be required to ensure that the child has frequent and continuing contact with a fit parent who desires it. (Statutes in some states actually require just that, but courts often ignore such statutes in practice). The Constitution's guarantee of the right to the care and custody of one's child can hardly mean less than that.

(2) Divorce doesn't just happen. It's typically initiated by the parent who expects to get custody (and deny the other spouse custody). That is, usually, it is the mom. (In families with children, at least three quarters of all divorces are filed by mom, not dad. By contrast, less than two-thirds of divorces among childless couples are filed by the wife. These are typically no-fault divorces. In contested custody battles, PHYSICAL custody usually goes to mom, although dad is sometimes given joint LEGAL custody).

There is something a bit unsettling about letting a spouse rely on an event he or she chose and set in motion (divorce) as a justification for denying the other spouse an active role in rearing his or her child.

If you want to get a divorce, fine. But don't expect to use that to cut off your spouse's right to participate in the life of your child. Regardless of whether you are tired of your spouse, your child deserves to have the support of, and a relationship with, both parents.

I was criticizing the situation that sometimes occurs in divorce cases, when a court adopts a custody order under which one parent warehouses the child in day care, even though the other parent is willing and able to care for the child.

I was arguing that that violated the other parent's constitutionally-protected parental rights. It also violates the child's constitutional right to the care of her parents.

[T]he separated parents can't make decisions together, so one parent (if you give that parent decisionmaking power) or both parents (if you decide that some government entity should arbitrate all the decisions) will necessarily have much less authority over the child's life.

It's not entirely clear to me that this is true. Married couples don't magically make all decisions together, either and have to compromise too. If the baseline were joint physical custody, then the practical decisions which matter most to the child (what to eat for dinner, bed time) would be shared. It's not inevitable that one parent must have more authority after the divorce -- it's not a zero-sum game before or after the marriage dissolves. See Joan B. Kelly, Further Observations on Joint Custody, 16 U.C.Davis L. Rev 762 (1983).

For example, the law for child custody could be very simple: each parent is required to have a home for the child 50% of the time.

That could easily be the end of the court's involvement. Courts don't arbitrate intact family disputes. The state doesn't owe children of divorce more concern for their interests than they owe intact children.

The children of intact families are generally assumed to have their parents to advocate for them against who (or what) ever.

In divorces, the who or what can and does often include "the other parent", simply because of how nasty and adversarial divorce and custody cases can get. (I would argue most cases are like that.)

So in their parental activity, the parent could very well be trying to alienate the child from the other parent. The parent may well decide that the "other" the child needs protection from includes the other parent. Why?

Because people are vindictive like that.

In such cases, who speaks for the child? I wouldn't rationally trust either parent to do so and actually have the child's interests in mind.

So, therefore, that duty, of being a Speaker, falls to the state acting in loco parentis.

As regards the initial issue:

It may not be perfectly have all the t's crossed and i's dotted, but the general preference on the part of adoption agencies and the like for placing children with those of the same religion seems sound.

For one thing, religion is often an important part of how a child is shaped, particularly in terms of identity.

For another, there are issues of broader religious practice: Consider boys who are Kohanim and come from an Orthodox Jewish family, for example. Or, quite simply, a religion that's small and afraid it'll lose members to conversion anyhow.

So can intact families. If the state were interested in protecting the best interests of the child, there's any number of horrific occurrences that regularly occur in all sorts of families that go well beyond the shouting matches involved in religious choices. Everything up to and including sexual abuse and murder occurs, and yet the state doesn't intervene. Instead, it makes a blanket determination that parents who don't live together are subject to extra scrutiny. And your response is that it's important, because one parent might be (gasp) deliberately trying to alienate the children from the other parent.